In the case of Aitken v DPP ([2015] EWHC 1079 (Admin)) the Divisional Court dismissed a former editor’s appeal against a conviction for publishing a story which breached an anonymity order under section 39 of the Children and Young Persons Act 1933.

The Court held that Brian Aitken, one-time editor of the Newcastle-based Journal newspaper, came within the definition of “any person who publishes any matter” as being liable to prosecution for a breach of the order.

Mr Justice Warby, who gave the judgment, with which Lord Justice Bean and Mr Justice William Davies agreed, said it would have been “anomalous” for editors to be exempt from liability under section 39 when they were prima facie liable at common law for libel and contempt, and were expressly identified as persons liable under every other statute which imposed criminal liability for publication.

Mr Aitken was convicted and fined £1,600 by a District Judge at Newcastle Magistrates’ Court in October last year over a story which named a school worker accused of sexual offences involving one of the pupils at the school – and included the name of the school.

District Judge Stephen Earle had held that, as the editor, Mr Aitken could be prosecuted under the terms of section 39 (2) of the Children and Young Persons Act 1933.

Mr Aitken – who, as his trial in October was told, was completely unaware at the time that the section 39 order had been made – appealed over District Judge’s Earle’s interpretation that section 39 (2), which makes “any person who publishes any matter” in breach of the section liable to prosecution, applied to newspaper editors.

Mr Justice Warby said today that Alex Bailin QC, for Mr Aitken, had pointed out that the court was interpreting a penal statute, and had to construe it strictly and conservatively, without being tempted to stray into any process of creative interpretation – the rule against penalisation under a doubtful law.

He had also argued that an editor fell outside the scope of the words “any person who publishes” – while he was involved in the publication process, as were journalists, desk editors, sub-editors and others, an editor was “not the person who publishes” the newspaper.

The history of amendments to both section 39 of the 1933 Act, and to section 49 of the same Act, which covers anonymity for juveniles in youth courts, supported a construction of section 39 which excluded editors from liability for a breach, as did amendments introduced via the Youth Justice and Criminal Evidence Act 1999 – which at the time of the prosecution were not in force – Mr Bailin had said.

Mr Justice Warby said he did not accept the contention that in its natural meaning the phrase “any person who publishes” referred only to the publisher. He went on:

“In my judgment the natural, ordinary and most obvious interpretation of the phrase ‘any person who publishes’ is that it refers to any person, natural or legal, who takes such a part in the process of publishing the matter that contravenes the direction or prohibition that it can properly be said of them that they ‘publish’ the matter. As a matter of practice, and using language in its ordinary sense, the commercial publisher of the newspaper will invariably be one such person, but it does not by any means follow that such a publisher is the only person who will qualify.” [40]

It was “a natural and not a forced reading” of the expression “any person who publishes” to regard it as encompassing others responsible for bringing about the publication of the material in question, including the editor in charge of the newspaper at the relevant time, and the journalist who wrote the piece.

It was, said Mr Justice Warby, a well-established principle of statutory construction that Parliament did not legislate in a vacuum, but against the background of and in the context of the surrounding common law.

Authorities cited by Steven Kovats QC, for the Crown Prosecution Service, showed that from at least as early as the first half of the 18th Century the common law had taken a broad view of who was responsible for the publication of material in newspapers and other printed matter. The Judge said that

“A wide variety of persons involved in the process of publishing has been treated as responsible for publication, and as being aptly described as ‘publishers’, with editors in modern times firmly established as leading figures in this class,” [41]

The common law authorities at the time the 1993 Act was passed showed that, in relation to the law of contempt, the common law context in which Parliament legislated at that time was one in which a wide range of participants were treated as “persons who publish”. “Subsequent decisions of this court apply the earlier authorities to the position of editors,” said Mr Justice Warby.

“They affirm the unsurprising view that the principles reflected in the earlier authorities mean that editors, like others involved in the process of publication, are regarded by the law as persons responsible for publication, and as ‘publishers’, of the content.” [45]

There were also clear indications that the courts regarded the principles of liability at common law as being identical in the case of a defamatory publication.

Mr Justice Warby said:

“I have asked myself whether there might be a meaningful distinction to be drawn between holding a person responsible for publication and describing them as a ‘person who publishes’. However, I do not consider that there is any such distinction, in this legal context. In my judgment it is clear that principles of common law which were long-established by 1933 held that editors and, I would add, proprietors were within the range of persons responsible for the publication of what appeared in their newspapers, and who would aptly be described as persons who published such content.” [51]

The judge said that while Mr Bailin was right to argue that a large number of statutes specified that criminal liability for newspaper publication which breached bans on publishing particular kinds of information should fall on proprietors, editors, and publishers, a proper analysis of the statutory provisions served to undermine rather than to support the contention that this showed that an editor was excluded from the scope of the phrase “any person who publishes”.

Given the statutory position when sections 39 and 49 of the 1933 Act were passed, the expression “any person who publishes” must be given a meaning corresponding to its broad common law meaning.

The fact that section 39 was never amended to specify that liability would fall on specific individuals or classes of people – as had happened with section 49 – did not help, the judge said.

“No satisfactory explanation for such a legislative choice has been offered, or is apparent,” Mr Justice Warby said, adding: “Sometimes a court may be driven to conclude that the legislature has simply overlooked an amendment that would have made the law consistent, and that is my conclusion on this issue.” [64]

Thus, the answer to the question posed by the case stated was that the editor of a newspaper did not, as a matter of law, fall outside the scope of the expression “any person who publishes” in section 39 (2) of the 1933 Act.

Mr Justice Warby added:

“I put it that way because, in contrast to most of the other statutory provisions we have examined in the course of this case, the 1933 Act does not deem an editor to be guilty of an offence if his newspaper publishes in contravention of its provisions. To make out the offence under section 39 against any person the prosecution would need to prove so that the magistrates were sure that the defendant’s conduct on the particular occasion was such that he published the matter that creates the contravention.” [68]

The judge went on to say that Parliament should address the issue of discrepancies in the regimes on reporting restrictions relating children and young people appearing in criminal and civil courts. He said that while the judgment on the appeal was “not the occasion for any detailed consideration of this new regime”, he was drawing attention to three features of it.

“First, the discrepancy between the regimes in criminal and civil proceedings that would have resulted from implementation of the [Youth Justice and Criminal Evidence Act “YJCEA”] reforms as enacted is not removed by the new regime. Criminal liability for newspaper publications in breach of a reporting restriction in respect of criminal proceedings is now expressly limited by ss 45, 45A of the YJCEA and s 49 of the 1933 Act to proprietors, editors, and publishers, but the same is not true of liability for breach of s 39 orders. The 2015 Act amends the phrase “”any person who publishes”” in s 39(2), but the amended section attributes liability to “”any person who includes in a publication”” matter prohibited by a s 39 order. Similar considerations arise in respect of broadcasts and cable programmes. Secondly, there is no due diligence defence to a charge of breaching a s 39 order. Thirdly, the wording of s 39 that led this court and the Court of Appeal to conclude in JC that it does not confer power to grant anonymity into adulthood remains. There is no counterpart in civil proceedings of the power to grant lifelong anonymity that is conferred on criminal courts by s 45A of the YJCEA”. [72]

He went on:

“It is hard to believe that these discrepancies between the regimes for criminal and civil proceedings are deliberate. They seem to me undesirable, and liable to generate needless and problematic uncertainty. Section 39 is likely to be of continuing importance in civil cases. It is also inherently likely that there will be parallel or sequential civil and criminal proceedings involving the same children or young persons, to which as things stand differing statutory anonymity regimes would apply”. [73]

As a result, he suggested that “the discrepancies are a fit subject for the attention of Parliament.” Lord Justice Bean agreed with these concluding remarks, suggesting that the scheme of statutory reporting restrictions “remains incoherent” and is in need of further review [75]

This is an edited version of two articles which originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.